Criminal Case Law Update, Week Ending 3-25-11

Courtesy of Law Offices of Dena Alo-Colbeck
“Writing and Research for Washington Attorneys”

The following criminal cases of note were decided this week:

Washington State Law

Washington State Supreme Court:

State v. Sandoval: The Court found that in light of the United States Supreme Court decision in Padilla v. Kentucky, Mr. Sandoval was denied effective assistance of counsel when his attorney urged him to take a plea offer that resulted in his guilty plea to third degree rape and subsequent deportation proceedings. The Court reasoned that the deportation consequence for a third degree rape plea was a straightforward consequence under the law, and that counsel’s advice that Mr. Sandoval would not be deported immediately was insufficient to advice him that deportation was in fact a certain consequence of the plea, making it instead appear a “remote possibility.” The Court further found that the warnings provided in the plea form pursuant to RCW 10.40.200 do not excuse defense attorney from providing the requisite warnings to clients regarding immigration consequences. The Court held that the assurances made by Mr. Sandoval’s counsel nullified the advice about the deportation consequences of the guilty plea. The Court also found that Mr. Sandoval was prejudiced by this advice because he provided ample evidence that he would have rejected the plea offer had he been fully aware of the deportation consequence.

In her concurrence, Justice Stephens agreed that the advice of counsel was objectively unreasonable under prevailing professional norms, though she believed that the consequences in this case were not straightforward, as the majority found. The concurrence further agreed that Mr. Sandoval had demonstrated the requisite prejudice. However, the concurrence cautioned that ineffective assistance of counsel should not be found in any circumstance where counsel provides affirmative advice regarding immigration consequences in unclear circumstances that turns out to be wrong.

In his concurrence, Justice James Johnson agreed with the result reached by the majority, but disagreed with the analysis used to reach that result. The concurrence argued that defense counsel in this case should merely have advised Mr. Sandoval of the risks of deportation and advised him to consult with an immigration lawyer before entering his plea. Expressing its belief that the immigration consequences of the plea were far from straightforward, the concurrence posited that counsel’s assurance that Mr. Sandoval would have sufficient time to serve his sentence and consult with immigration counsel before any proceedings were begun was the factor that caused the advice to constitute ineffective assistance. Further, the concurrence argued that the trial court could have cured this merely be specifically addressing the immigration consequences during the plea colloquy.

Division One Court of Appeals:

State v. Flora: The Court reversed Mr. Flora’s conviction for attempting to elude a police officer, finding that the trial court’s refusal to allow a jury instruction defining “willfully” was error, and that the error was not harmless. The Court reasoned that without the instruction, Mr. Flora lacked legal support for his theory that the vehicle he was accused of willfully eluding was not recognizable as a police vehicle. Finding that the absence of such an instruction may have affected the verdict, as the jury could not find that Mr. Flora’s conduct was willful without understanding the technical meaning of the word within the context of the statute, the Court reversed for a new trial at which the instruction is to be used.

State v. Mares: The Court affirmed Mr. Mares’ conviction for violation of a no contact order, finding meritless Mr. Mares’ claim that the trial court violated his Sixth Amendment right to confront witnesses by admitting a certified copy of the victim’s driver’s license as evidence of her identity when the victim failed to appear for trial. The Court disagreed with Mr. Mares’ contention that he had a right to confront the records custodian who certified the authenticity of the document, finding the certified copy non-testimonial in this context. In so holding the Court rejected contentions that the certification of an existing record is testimonial because it impliedly asserts the absence of any other record matching the name of the alleged victim. The Court reasoned that such was neither the substance nor the implication of the custodian’s affidavit, and whether other records existed with the same name was irrelevant, as witnesses testified that the license found by the records custodian identified it as that of the alleged victim.

Auburn v. Gauntt: The Court reversed Mr. Gauntt’s conviction for possession of marijuana, finding that the City of Auburn never expressly adopted the mandatory minimum penalties for the crime of possession of marijuana provided by the State statute. The Court disagreed, finding that the city only has jurisdiction over “charges filed under state law or city ordinance.” The City Code permits prosecution of crimes under the code, as well as crimes under state law when the City has specifically adopted by reference the appropriate state statute. There is no statute allowing the City to prosecute all misdemeanors regardless of whether or not these offenses have been adopted by the city code.

Division Two Court of Appeals:

State v. Milton: In this partially published opinion, the Court held that Mr. Milton was entitled to counsel at a restitution hearing after his guilty plea to several felonies. Mr. Milton had waived his appearance at the hearing, and his appointed counsel failed to appear. The Court vacated the restitution order and remanded for a new restitution hearing with counsel present.

Detention of Mitchell: The Court ruled that CR 60(b) does not apply to Sexually Violent Predator (SVP) commitments under chapter 71.09 RCW. The Court reasoned that SVP post-commitment orders arising from annual review hearings that do not result in final unconditional releases of the SVP are not final orders and are thus not reviewable under CR 60(b). Thus, the Court held, the trial court did not abuse its discretion in declining to review Mr. Mitchell’s SVP order under CR 60(b) that had denied him a full evidentiary hearing.

State v. I.K.C.: The Court held that RCW 13.40.127 does not allow juvenile courts to impose detention for deferred dispositions. The Court reasoned that a juvenile court can choose from a broad range of conditions when crafting an individualized sentence to suit the needs of a particular juvenile, including community-based sanctions, community-based rehabilitation, monitoring and reporting requirements, and posting a probation bond. RCW 13.40.020(4). The Court noted that confinement is conspicuously absent from this list and is expressly disallowed under “[m]onitoring and reporting requirements.” See RCW 13.40.020(4),(5),(19). The plain language of RCW 13.40.127(5) and RCW 13.40.020 demonstrates that the legislature did not intend to allow juvenile courts to impose confinement as a condition of community supervision for deferred dispositions.

State v. Rich: The Court reversed for a second time Mr. Rich’s exceptional sentence and remanded Mr. Rich’s matter for resentencing within the standard range. The Court found that the State’s delay of the case beyond the agreed-upon waiver of speedy sentencing until the United States Supreme Court issued its decision in Blakely v. Washington violated Mr. Rich’s right to speedy trial. The Court further found that Mr. Rich was prejudiced by the State’s delay, as the State managed to hold off sentencing until after the legislative changes in 2007 allowed courts to impanel juries to find aggravating sentencing circumstances in cases like Mr. Rich’s, which were due to be resentenced on a remand, increasing the likelihood that an exceptional sentence would be imposed. The Court reasoned that had Mr. Rich been sentenced prior to the 2007 amendment, he would have been able to seek a standard range sentence, an option that was foreclosed once the legislature amended the law to allow empanelment of a jury.

Division Three Court of Appeals:

Detention of Coe: The Court affirmed Mr. Coe’s civil commitment as a sexually violent predator (SVP) based on the State’s psychological expert’s opinion that Mr. Coe suffers from a mental abnormality or personality disorder making him likely to engage in acts of sexual violence if not confined. The court rejected Mr. Coe’s contentions that the trial court erred in admitting (1) other expert testimony regarding Mr. Coe’s unique combination-of-behavior “signature” indicating he committed multiple sexual offenses other than the underlying rape, (2) unadjudicated offenses identified from a statistical database, (3) testimony by some unadjudicated-offense victims, and (4) the psychological expert’s opinion because it was partly based on the first three admission errors. Further, Mr. Coe asserts (5) he was denied due-process confrontation, and (6) ineffective assistance of his trial counsel in failing to offer a jury instruction defining “personality disorder.”

State v. Christman: The court affirmed Mr. Christman’s conviction for controlled substances homicide based on evidence that the alleged victim, Ryan Mulder, ingested nine and a half methamphetamine pills given to him by Mr. Christman over the course of a few hours while at a party where he also consumed alcohol and smoked marijuana. Despite evidence that there was alcohol and marijuana present in Mr. Mulder’s system at the time of his death, levels of which were not measured by the State, the Court found credible the expert testimony that the methamphetamines were the proximate cause of Mr. Mulder’s death. In upholding the conviction, the Court held that proximate cause is a required element of controlled substances homicide, that the statute establishing the crime is not unconstitutionally vague in that respect, as alleged by Mr. Christman, and that the evidence was sufficient to support the conviction.

State v. Statler: The Court affirmed Mr. Statler’s convictions for first degree robbery, first degree assault and drive by shooting, and his sentence of 498 months, based in large part on the testimony of a participating witness who provided evidence against Mr. Statler at trial. The Court found that the trial court had properly denied Mr. Statler’s request for a new trial based on evidence that a participating witness who had inculpated him in the crimes had recanted his story and was able to provide exculpating evidence. The Court found that the recanting witness was not credible and his testimony would not have changed the course of the trial. The Court further found that Mr. Statler’s counsel’s performance was not ineffective, that the State did not threaten the exculpating witness, and that Mr. Statler was not exposed to double jeopardy based on convictions for first degree assault and drive by shooting. The Court did uphold the mitigated exceptional sentence imposed by the trial court, finding the trial court had adequately enunciated its basis for the sentence. The Court also rejected Mr. Statler’s concerns over an amendment of the crime date in the information, the effectiveness of his counsel, and due process concerns.

In a dissent, Judge Kulik argued that Mr. Statler’s counsel’s failure to pursue exculpatory testimony from a participating witness constituted deficient performance and prejudiced Mr. Statler. The dissent argued that the convictions should be vacated and the case remanded for a new trial.

State v. Larson: The Court upheld Mr. Larson’s convictions for first degree robbery, first degree assault, and drive by shooting. The Court found that Mr. Larson was not entitled to a new trial based on exculpatory testimony from an alleged co-participant who had pled guilty, as the expected testimony was not newly discovered evidence and the trial counsel’s decision not to call this witness at trial was a tactical one, and did not amount to ineffective assistance of counsel. The Court also rejected the contention that the State improperly threatened the co-participant with a perjury charge to dissuade him from testifying at trial. Finally, the Court rejected the concerns stated by Mr. Larson in his Statement of Additional Grounds, in which he challenged the constitutionality of the public defender’s office, challenged the assault and drive by shooting convictions under double jeopardy principles, and alleged that the State had suborned the perjured testimony of a key witness.

In a dissent, Judge Kulik argued that Mr. Larson’s counsel’s failure to pursue exculpatory testimony from a participating witness constituted deficient performance and prejudiced Mr. Larson. The dissent argued that the convictions should be vacated and the case remanded for a new trial.

State v. Gassman: The Court upheld Mr. Gassman’s convictions for first degree robbery, first degree assault, and drive-by shooting. The Court found that Mr. Gassman was not entitled to a new trial based on newly discovered evidence, as it was unlikely that evidence would change the course of the trial. The Court further found that Mr. Gassman’s convictions for first degree assault and drive-by shooting did not violate double jeopardy, and that the trial court did not err in allow the State to amend the information to change the alleged date of the crimes on the day of trial, noting that sanctions were imposed upon the State concurrent with the amendment. The Court upheld Mr. Gassman’s mitigated exceptional sentence.

In a dissent, Judge Kulik argued that Mr. Gassman’s counsel’s failure to pursue exculpatory testimony from a participating witness constituted deficient performance and prejudiced Mr. Gassman. The dissent argued that the convictions should be vacated and the case remanded for a new trial.

Federal Law

Ninth Circuit Court of Appeals:

United States v. Guo: The Court affirmed Mr. Guo’s conviction for knowingly and willfully conspiring to export and attempting to export ten export-controlled thermal imaging cameras without a license. The Court found that the statute, while complex, is not void for vagueness. The Court reasoned that the export administration regulations describe in great detail the technologies for which the government requires a license for export, and to obtain a conviction the government must prove beyond a reasonable doubt that the person knew that he needed a license but did not get one. Therefore, the court ruled, there was no danger of an unwitting violation.

United States v. W.P.L.: The Court upheld the district court’s imposition of a condition of supervised release that W.P.L., a juvenile, register as a sex offender “if required by law.” The Court reasoned that the district court did not make a legal determination that Defendant must register as a sex offender. Instead, it imposed the condition that he register only “if required by law.” The Court found that imposition of such a condition of supervised release, that a defendant comply with mandatory legal duties, is within the district court’s discretion. The Court noted that its decision did not preclude an as applied challenge once registration became an issue, however , the Court found that the case was not yet ripe for such a challenge.

United States v. Buenrostro: The Court found that Mr. Buenrostro was not entitled to bring an ineffective assistance of counsel claim, as such claim was ripe and should have been brought in Mr. Buenrostro’s § 2255 motion. The Court reasoned that the fact that Mr. Buenrostro claimed he had no reason to know he could bring such a claim in his first motion is not determinative to his right to relief. Therefore, Mr. Buenrostro’s instant § 2255 motion is “second or successive.” The Court pointed out that as a “modified res judicata rule,” second or successive bar marks the end point of litigation even where compelling new evidence of a constitutional violation is discovered. The Court observed that only a prisoner who obtains new evidence that could clearly and convincingly prove his innocence or who has the benefit of a new, retroactive rule of constitutional law will prevail bringing a second or successive motion, and that Mr. Buenrostro is not that prisoner.

United States v. Harrell: The court held that the “relating to” parentheticals within 18
U.S.C. § 1028A(c), prohibiting the use of false identification, do not limit the statute’s otherwise clear articulation of which offenses may serve as predicates for application of § 1028A(a), but serve simply as descriptive aids. The Court found that the statute does apply to Ms. Harrell, because the statute is not limited. The Court held that the interpretation of the statute urged by Ms. Harrell is not supported by the plain language of the statute and would render some of the statute’s provisions meaningless.

Noble v. Cuevas: The Court found that Mr. Adams and Mr. Cuevas, two prison officials responsible for a post-riot lockdown of Corcoran State Prison in California did not act unreasonably in declaring a lockdown and curtailing use of the exercise yard. The Court denied Mr. Noble’s claim that the lockdown resulted in a denial of his Eighth Amendment right to outdoor exercise. The Court found that at the time the lockdown was declared, it would not have been clear under prevailing law that the officer’s conduct vis à vis the declaration of an emergency, the lockdown, or the curtailment of use of the exercise yard was unlawful in the situation he or she confronted.

United States v. Fernandes: The Court reversed Mr. Fernandes’ sentence on a plea of guilty to one count of abusive sexual contact, which occurred when Mr. Fernandes inappropriately fondled an intoxicated co-worker without her permission. The Court found that the district court should have required Mr. Fernandes to register as a sex offender, and its failure to do so was error.

United States Supreme Court:

Felkner v. Jackson: In a Per Curiam decision, the Court granted certiorari and reversed the Ninth Circuit’s reversal of Mr. Jackson’s unsuccessful Batson challenge to the State’s exclusion of two of three prospective black jurors on his jury venire. The prosecutor offered race-neutral explanations for striking each juror, claiming that Juror S was stricken due to frequent and negative contacts with law enforcement that he believed were related to his race and age, and claiming that Juror J was stricken because of her degree in social work because he “does not like to keep social workers.” On direct appeal, Mr. Jackson claimed that a comparative juror analysis revealed that the prosecutor’s explanations were pre-textual. Mr. Jackson claimed one non-black juror also had negative experiences with law enforcement, and that several white jurors had been questioned extensively regarding their educational backgrounds, but Juror J had been struck without questioning. The Court recognized that the issue before it turned largely on credibility, and that the trial court’s determination is entitled to great deference, and must be sustained unless clearly erroneous. The Court found that the trial court had credited the prosecutor’s explanations and the State Court of Appeal had upheld the trial court. The Court found that there was no basis for the Ninth Circuit to reverse, particularly without explanation, as it did in this case. The Court reversed the judgment of the Ninth Circuit and remanded for further proceedings.


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